DESH MANAGEMENT LLC v. SAKINA BEGUM

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Court of Appeal, Second District, California.

DESH MANAGEMENT, LLC, et al., Plaintiffs and Respondents, v. SAKINA BEGUM, et al., Defendants and Appellants.

B225366

Decided: August 23, 2011

Asian Pacific American Legal Center, Justin Ma, Julie Su for Defendants and Appellants. Law Office of Lorraine Anderson, Lorraine Anderson for Plaintiffs and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendants Sakina Begum and Aziz Ahmed Babul appeal the trial court's denial of their motion to strike, pursuant to Code of Civil Procedure 1 section 425.16, the complaint of plaintiffs Desh Management, LLC, Tahmedur Rahman, Samim Chowdhury, Mohammed Rashid and Abdul Wadud.   Finding no error, we affirm the trial court's order.

FACTUAL AND PROCEDURAL SUMMARY

Defendant Begum worked as a cook at Little Dhaka Restaurant, which is owned by plaintiff Desh Management, LLC, which in turn is owned by plaintiffs Rahman, Chowdhury, and Rashid.   According to Begum, shortly after plaintiff Wadud was hired by the restaurant as a second cook, he began harassing her.2  She complained to the management, but the owners did nothing to stop the conduct, and it continued.

On or about January 27, 2010, Begum met with Hamid Khan and Joyti Chand, representatives of South Asian Network (SAN), a community-based organization.   SAN assisted Begum in composing a letter detailing the nature of her complaints and requesting a meeting among herself, Wadud, the restaurant's owners, and SAN representatives to resolve the situation.   The letter, signed by Khan, Chand, and Begum, concluded with the statement that the restaurant's failure to address the problem would force SAN “to facilitate legal and other public actions against you ․ includ[ing] mobilizing the community and protesting in front of your business.”   Begum delivered the letter to plaintiffs on February 10, 2010.

Begum was fired on February 11, 2010, at which time Begum and Rahman exchanged words.   Begum reported the confrontation to Khan, who summoned the police.   Rahman was arrested, but was released after the police viewed the encounter on videotape.

By week's end, plaintiffs had filed this lawsuit against Begum, Babul, SAN, Khan, and Chand, alleging causes of action for defamation, extortion, false imprisonment, malicious prosecution, and intentional and negligent infliction of emotional distress.   The conduct underlying the allegations of the complaint consisted of (1) “defamatory statements” made by Begum and Babul to the restaurant's customers to the effect that Wadud had sexually, verbally and physically harassed her, and that the restaurant's owners created, tolerated and fostered a hostile work environment;  (2) the threat to mobilize the community and protest in front of the restaurant, which amounted to extortion;  and (3) making a false report to the police, which resulted in the false arrest and imprisonment of Rahman.

Defendants filed a SLAPP motion, claiming that the conduct complained of constituted protected speech, and that the complaint lacked merit.

The trial court granted the motion to strike with respect to the causes of action directed to SAN and its representatives.   The court ruled that the correspondence and conversations between plaintiffs, defendants, and SAN were made in contemplation of litigation and thus protected speech under section 425.16.   The court further ruled that defendants' actions in calling the police and making an allegedly false police report likewise implicated their right to petition the government, and were thus protected under the anti-SLAPP statute.   Finally, the court held that malicious prosecution, by definition, involves protected activity.   Because plaintiffs offered no evidence to demonstrate a likelihood of prevailing on these claims, the court struck these causes of action pursuant to section 425.16, resulting in the dismissal of SAN, Khan, and Chand from the lawsuit.   Plaintiffs do not challenge this ruling on appeal.

As to the remaining causes of action – those based on Begum's and Babul's allegedly defamatory statements made to the restaurant's customers – the trial court ruled that they were not based on protected speech, because they were not reasonably connected to the subsequent litigation.   Begum and Babul appeal this ruling.

DISCUSSION

As we recently explained in Neville v. Chudacoff (2008) 160 Cal.App.4th 1255 (Neville ), “ ‘A SLAPP suit – a strategic lawsuit against public participation – seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances.  [Citation.]  The Legislature enacted Code of Civil Procedure section 425.16 – known as the anti-SLAPP statute – to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.  [Citation.]’  Pursuant to section 425.16, subdivision (b)(1), a litigant may move to strike ‘[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue․’  Such acts include ‘any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body ․ ‘ (§ 425.16, subd. (e)(2).)  ‘Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest.  [Citations.]’  (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35, 64 Cal.Rptr.3d 348[ ];  see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.)”  (Neville, supra, at p. 1261.)

“To apply the anti-SLAPP statute, courts engage in a two-step process.   ‘ “First, the court decides whether the [moving party] has made a threshold showing that the challenged cause of action is one arising from protected activity․  If the court finds such a showing has been made, it then determines whether the [complaining party] has demonstrated a probability of prevailing on the claim.” ’  (Taus v. Loftus (2007) 40 Cal.4th 683, 703, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)   In analyzing whether the moving party has met its burden of showing that the suit arises from protected activity, the court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).)  [¶] ․ We review the trial court's order de novo.  (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 79.)”  (Neville, supra, at pp. 1261–1262.)

Begum and Babul maintain that the statements forming the basis of plaintiffs' defamation claims against them (1) related to the substantive issues of Begum's sexual harassment complaint;  (2) were directed to members of SAN, to her employers, or to potential witnesses, all of whom had some interest in the contemplated litigation;  and (3) were made in contemplation of litigation.   They therefore conclude that the speech is protected, and their motion to strike was improperly denied.

The trial court ruled that the alleged defamatory statements made to the restaurant's patrons “were not reasonably connected to the subsequent litigation,” and were therefore not protected speech under the anti-SLAPP statute.   Begum and Babul counter that plaintiffs “failed to submit any evidence of the identity of or how many customers allegedly overheard these statements.”   That was not, however, plaintiffs' burden in opposing the motion to strike.   Rather, defendants were required to show that the conduct alleged in the complaint was protected activity;  plaintiffs were required to make an evidentiary showing only if and when defendants met this burden.   Because they did not, the trial court properly denied the motion.

Defendants cite Neville v. Chudacoff, supra, 148 Cal.App.4th 71, to argue that “statements to customers who are not parties or potential parties to litigation may be protected under Section 425.16, subdivision (e)(2) provided such statements are made in connection with pending or anticipated litigation.”   As defendants explain:  “In Neville v. Chudacoff, a lawyer wrote to a client's customers accusing the client's former employee of misappropriating trade secrets and breach of contract, and urged the customers not to do business with the former employee.  (160 Cal.App.4th 1255, 1259.)   The court found the letter was a writing made ‘in connection with an issue under consideration or review’ by a judicial body and covered by the SLAPP statute though it was sent four months before a lawsuit was filed.  (Id. at pp. 1260, 1268.)   The letter was directed to customers whom the defendant ‘reasonably could believe had an interest in the dispute as potential witnesses to ․’ the former employee's alleged misconduct.  (Id. at p. 1268.)”

Unlike the customers in Neville, whose business allegedly was being solicited by the former employee in breach of his obligations to his former employer, here derogatory statements allegedly were made to the restaurant's customers.3  The patrons of a restaurant have no legal interest in an employee's dispute with the establishment's owners, especially where, as here, the harassing conduct was alleged to have occurred in the kitchen, outside the presence of the customers.

Defendants declare that denying their SLAPP motion will have a profound chilling effect on an employee's right to be free from sexual harassment in the workplace.   We disagree.   The trial court granted defendants' motion to strike as to all causes of action which concerned Begum's attempts to address her complaints of sexual harassment with her employer.   It denied the motion only with respect to those statements which allegedly were directed at people who had no interest in, or ability to resolve, her employment dispute.

In short, the trial court properly denied the motion of Begum and Babul to strike the causes of action against them based on allegedly defamatory statements made by them to the customers of Little Dhaka.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Code of Civil Procedure unless otherwise indicated..  FN1. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

FN2. Among Wadud's alleged acts of harassment:  repeatedly pulling his unzipped pants up and down in front of Begum, bumping into her in the kitchen, and cursing at her..  FN2. Among Wadud's alleged acts of harassment:  repeatedly pulling his unzipped pants up and down in front of Begum, bumping into her in the kitchen, and cursing at her.

FN3. While defendants describe the conduct complained of as the customers “overhearing” the statements in question (“Speech does not lose its protected status simply because it is overheard by a third party”), the complaint alleges that the statements were made “to the customers.”.  FN3. While defendants describe the conduct complained of as the customers “overhearing” the statements in question (“Speech does not lose its protected status simply because it is overheard by a third party”), the complaint alleges that the statements were made “to the customers.”

MOSK, J. KRIEGLER, J.